Customary Court Of Appeal Edo State V. Chief (Engr) E.A. Aguele & Ors

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against a part of the judgment of the Court Appeal, Benin Division delivered on the 24th day of May, 2006 which the lower Court held that the trial Court was biased in ruling delivered in Suit No. B/I63/05/2003 on the 26th January 2004.

Dissatisfied with the said ruling of the trial Court, the appellant appealed to the Court of Appeal which upheld the trial Court’s ruling that it had jurisdiction to hear and determine the 1st respondent originating summons but allowed the appeal on the ground that the learned trial Judge was biased.

Also aggrieved by the part of the lower Court’s judgment the 1st respondent has cross-appealed with the leave of this Court granted on the 22nd June, 2009.

Facts briefly stated:

On 20th September, 2001, the 1st respondent (as plaintiff) filed Suit No. UBACC/26/2001 against the 2nd respondent at the Esan South East Area Customary Court, Ubiaja, for the dissolution of marriage.

Subsequently, 2nd respondent filed a motion and in it, she raised an objection to the competence of the claim on the

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ground of lack of personal service amongst others. The Court ruled against the 2nd respondent.

Dissatisfied, the 2nd respondent herein appealed against the ruling to the Customary Court of Appeal (now appellant).

The substance of the appeal was whether or not there was denial of fair hearing on the part of the trial Court when it dismissed the application of Mrs. Aguele (2nd respondent) requesting for time to react to a counter affidavit. The appellant herein held that the refusal of the trial Court to give time to the 2nd respondent to react to the counter affidavit served on her was a denial of fair hearing and therefore ordered that the substantive case be sent to another Court for hearing and determination.

Rather than appeal to the Court of Appeal against this judgment, the 1st respondent proceeded to the High Court and filed an originating summons requesting the Court to determine whether, having regards to the provisions of Section 282 (1) of the Constitution of the Federal Republic of Nigeria 1999, the Customary Court of Appeal could adjudicate on a matter raising question of fair hearing under Section 36 (1) of the Constitution.

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In response, the appellant herein filed a notice of preliminary objection for an order requesting the High Court to strike out the suit for lack of jurisdiction on the ground that the High Court, being a Court of co-ordinate jurisdiction with the Customary Court of Appeal, did not have appellate and/or supervisory jurisdiction over decisions of the Customary Court of Appeal.